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datory gives the legislatures still greater freedom in their application. This doctrine is borrowed from the principle that, when the provisions for carrying out a statute were not designed to operate as a condition to its performance and do not to the judicial mind appear essential, they will be regarded as directory. In such cases the proceedings under the act will be held valid, although the command of the act as to form and time has not been strictly observed; the time and manner not being the essence of the thing required to be done.29

In many cases this is the reasonable attitude towards constitutional prescriptions, since the execution of the legislative function is more important than the method. Accordingly it is usual to hold that an incorrect enacting clause will not invalidate the law, the form set forth in the constitution being considered directory.30 Constitutional provisions that bills shall be enacted into clauses and sections are viewed in the same light.31 In situations such as these the will of the framers of the constitution may be accomplished without strict adherence to constitutional standards, for the questions are purely ones of form, but when methods of procedure are involved the situation is more serious. Requirements such as that a bill shall be read on three separate days exist to insure deliberation and to check flagrant evils. As Cooley- well points out, the interpretation of constitutional prescriptions which renders them merely directory is charged with dangerous elements. The fundamental law does not generally undertake to prescribe rules of proceeding except where such rules are looked upon as essential to the thing to be done. Sections which require that every bill shall have three readings on separate days have sometimes been held mandatory, sometimes merely directory," and the same is true of the provision that all

29 Potter's, "Dwarris on Statutes,” p. 222 and p. 226 note. See also People v. Spruance, 8 Colo. 307.

30 McPherson v. Leonard, 29 Md. 377; Cape Giraudeau v. Riley, 52 Mo. 424; Swann v. Buck, 40 Miss. 368; State v. Burrow, 119 Tenn. 376; But in State v. Rogers, 10 Nevada 250, the omission of one word from the enacting clause rendered the act void. The Court was moved to this extreme view by Cooley on "Constitutional Limitations," 7 ed., p. 214.

31 County Commissioners v. Meckens, 50 Md. 28.

*Cooley, "Constitutional Limitations,” 7 ed., pp. 213–214.

33 Mandatory, Ryan v. Lynch, 68 Ill. 160; Board of Supervisors v. Heenan, 2 Minn. 330; In the latter case the court considered that since the constitution

bills shall be signed by the presiding officers and the fact entered in the journals.34 Although clauses requiring that bills have but one subject clearly expressed in the title are generally mandatory, a few decisions have declared them to be merely directory.35

The rule has been applied that the constitutional prescription is directory where there is no clause declaring the act void if the direction be not followed,36 whereas if the reading is that "no bill shall become a law" unless a certain procedure is followed the provision is mandatory.37 However this rule is not general, for affirmative clauses have often been held mandatory, largely under the influence of the attitude taken by Cooley. From the viewpoint of legislative procedure the question is not of prime importance as long as courts refuse to invalidate an act other than by affirmative statements on the journal.

PAROL EVIDENCE INADMISSIBLE TO OVERTHROW JOURNALS

The courts have consistently refused to admit parol evidence to overthrow the favorable presumption towards an act, the journal being the only evidence competent to impeach it.38 The integrity of the journal cannot be assailed for fraud or deceit. When approved by the house it becomes the act of the house itself and to inquire into its veracity would be to invade a coördinate department provided that the necessity for three readings on separate days could only be suspended by a two-thirds vote, it was demonstrated that the framers of the fundamental law attached great importance to the manner of passing an act. Directory, Miller and Gibson v. State, 3 Ohio St. 475.

34 Mandatory, State v. Glenn, 18 Nev. 34; State v. Keisewetter, 45 Ohio St. 254; Burrit v. Commissioners, 120 Ill. 322. Directory, In re Roberts, 5 Colo. 525; Leavenworth v. Higginbotham, 17 Kan. 62 (otherwise the presiding officers would have the veto power); State v. Mason, 155 Mo. 486; Telegraph Co. v. Nashville, 118 Tenn. 1.

35 Washington v. Page, 4 Cal. 388; In re Boston Mining Co., 51 Cal. 624; Ohio v. Corrington, 29 Ohio St. 102.

36 People v. Supervisors, 27 Barb. (N. Y.) 584; People v. Supervisors of Chenango, 8 N. Y. 317; McClinch v. Sturgis, 72 Maine 288; State v. Meade, 71 Mo. 266. 27 Larkin v. Simmons, 155 Ala. 273; Cummins v. Gaston, 109 S. W. (Tex.) 476.

38 Ames v. U. P. Rwy. Co., 64 Fed. 165; State v. Brody, 148 Ala. 381; People v. Hatch, 33 Ill. 9; Brays v. Williams, 137 N. C. 387; Auditor-General v. Board, 51 N. W. 483 (Mich.).

of government. If the journal contains errors the house itself is the only tribunal competent to correct them.39

This freedom from judicial inquisition is granted the legislature as a right inherent in an independent department of government. Where the constitution has imposed restrictions upon it as to the methods by which it shall act, it claims the prerogative of applying these restrictions. If, during the passage of an act, the constitution has been violated, attention is called to the breach by raising a point of order on the floor. Thus a point of order that notice had not been given for a private bill as ordered by the constitution is fatal if sustained.40 Presiding officers refuse to rule on the constitutionality of a measure unless a point of order is involved. It is then their duty to do so. The Missouri Constitution (Section 37, Article III) empowers five members of either house to protest that the constitution has been violated in the passage of a bill, which protest is to be noted on the journal. The courts hold, therefore, that in the absence of such protest it will be presumed that the legislature was not remiss.42 But as the same courts have ruled that to nullify an act the journals must show affirmatively and beyond all doubt that the constitution was not followed, it is difficult to see how a parliamentary objection would have much weight.43

THE VALIDITY OF PARLIAMENTARY RULES

The constitutions of all the states except Georgia empower their legislatures to make their own rules of procedure, although nothing is clearer than that this prerogative would inhere without express constitutional grant. From this it follows that no court will review any infraction of the legislative rules, and if the houses choose to ignore them completely the validity of their acts is in no

39 State v. Smith, 44 Ohio St. 348. Here a spurious and false journal accomplished the validity of an act; protests and affidavits spread on the journal at a later date were of no effect. See also Taylor v. Beckham, 108 Ky. 278, where it was averred that in an election contest following the murder of Goebel the journals were fraudulently made out pursuant to a conspiracy. See further Wise v. Briggs, 79 Va. 269.

40 Penna. House Journal, 1876, p. 790 et passim.

41 For a complete discussion see Mass. Senate Journal, 1869, p. 341.

42 McCafferty v. Mason, 155 Mo. 486.

43 State v. Field, 119 Mo. 593.

way affected." A house may adopt any procedure it sees fit, and change it at any time without notice, but it cannot bind itself by establishing unchangeable rules.45 In this respect joint rules are no more binding than the rules of a single house, their observance likewise resting upon the discretion of the legislature.46

The constitution of Minnesota contains a clause obviously designed to increase the authority of the rules of the two houses. Bills, passed in conformity to the rules of each house and to the joint rules, are to be presented to the governor. (Section 21, Article IV.) In an early case the Supreme Court of the State discussed the probability that by this recognition the rules were designed to be placed on the same footing with the rules incorporated in the constitution.47 Nevertheless, no court has nor will any court be apt to test the possibilities of this provision because of the doctrine that no act can be impeached except by affirmative evidence on the journal.48

THE AUTHORITY OF STATUTES REGUlating PROCEDURE

Brief reference has already been made to frequent attempts to secure a more refined procedure by incorporating certain rules in the statute law, the thought being that once a rule has received the approval of the governor in the form of a legislative act, its observance rests no longer upon the whim of the legislature. Following the passage of such laws, the question arose whether or not a binding authority higher than a mere parliamentary rule had been attained in any manner which the courts were bound to respect. The general verdict has been that these self-inflicted restraints have no higher validity than a rule of practice of a single house. Thus a statute directing that every bill shall have three readings on separate days was merely directory and its suspension by less than a twothirds vote, although forbidden by the act, did not invalidate legislative action on a bill. Such a statute receives its entire force from legislative sanction and exists only at legislative pleasure. It is no more than a rule of procedure adopted by the legislature to 44 McDonald v. State, 80 Wis. 407; Brays v. Williams, 137 N. C. 387; Wise v. Bigger, 79 Va. 269.

45 French v. State Senate, 146 Cal. 604.

46 Railway Co. v. Gill, 54 Ark. 101.

47 Board of Supervisors v. Heenan, 2 Minn. 335.

48 State v. Hastings, 24 Minn. 78.

govern its own proceedings. Neither can one legislature bind another by a particular mode of repealing or amending statutes, for no form can be prescribed for legislative action which the constitution does not lay down.50

The position of the courts is further revealed by their attitude towards acts which have been called out by the numerous evils attending special and local legislation. In states where no constitutional mandate exists it has been common to provide by statute that notice of intention to introduce any special or local act must be published in approved form. The universal opinion of the courts has been that such statutory requirements may be disregarded since they can exist only for the legislature's guidance and convenience.51

The practice of Congress conforms to the theory prevailing in the states. A rule of procedure accordingly is not controlled by any act of a preceding Congress, 52 although a law passed by the then existing Congress has been recognized as binding in such matters.53 It need hardly be pointed out, however, that, when the question of suspension comes up, statutes of the sort under discussion have a validity higher than a simple rule, inasmuch as the prestige of a statute is greater than that of a mere rule of practice.

In an effort to assure the actual presence of members at the final passage of a bill and to escape the "short roll call," New York

49 Sweitzer v. Territory, 5 Okla. 297.

50 Brightman v. Kernor, 22 Wis. 54.

The New York Commission to recommend changes in methods of legislation (appointed by the Governor, 1895) urged that certain provisions of the joint rules be enacted into statutes that they might at least be binding on each house taken separately. (N. Y. Assembly Documents No. 20, Session of 1896.) This is an incorrect statement of law.

51 Manigault v. Ward, 123 Fed. 707 (affirmed 199 U. S. 473, although this point did not come up). Derby & Turnpike Co. v. Parker, 10 Conn. 522; Chamlee v, Davis, 115 Ga. 266; Opinion of the Justices, 63 N. H. 625; Sherman v. Benford. 10 R. I. 559.

In Chalfant v. Edwards, 156 Pa. St. 246, the court spoke with disfavor of the opinion that one legislature might disregard at pleasure the directions of its predecessor concerning the publication of notices of private bills, and pointed out that although the power to repeal the act could not be doubted yet it had not been exercised, and the citizens of any locality had the right to rely on the observance of its provisions. The case, however, was decided on other grounds.

52 4 Hinds 3298, 3579, 3819.

53 5 Hinds 6767, 6768.

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